Fifth Amendment

Let’s hope Justice Kagan is wrong about this ominous prediction in her dissenting opinion in Knick v. Township of Scott: “today’s decision means that government regulators will often have no way to avoid violating the Constitution.”

In a 5-4 opinion the Supreme Court held that a property owner may proceed directly to federal court with a takings claim. In Knick the Court overturned Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985), which held that before a takings claim may be brought in federal court, a property owner must first seek just compensation under state law in state court. The State and Local Legal Center (SLLC) amicus brief urged the Court to keep Williamson County.

In an amicus brief in Gamble v. United States, the State and Local Legal Center (SLLC) asks the Supreme Court not to overrule the “separate sovereigns” exception to the Double Jeopardy Clause. This exception allows states and the federal government to convict and sentence a person for the same conduct.

Gamble was prosecuted for and convicted of possession of a firearm by a convicted felon under both Alabama and United States law. His challenge to the “separate sovereigns” exception is unsurprising given that Justice Thomas joined Justice Ginsburg’s concurring opinion in Puerto Rico v. Sanchez-Valle (2016), which suggested the Court do a “fresh examination” of the “separate sovereigns” exception. These Justices are on opposite ends of the ideological spectrum and typically don’t vote together in close cases. 

In Sanchez-Valle the Court held that the Double Jeopardy Clause bars both Puerto Rico and the United States from prosecuting a person for the same conduct under equivalent criminal laws. Puerto Rico isn’t a sovereign distinct from the United States because it derived its authority from the U.S. Congress.

The Fifth Amendment’s Double Jeopardy Clause, which prohibits a person from being prosecuted more than once for the same conduct, is a familiar concept. Less familiar is the “separate sovereigns” exception which allows states and the federal government to convict and sentence a person for the same conduct. In Gamble v. United States, Terance Gamble asks the Supreme Court to overrule this exception.

Gamble was prosecuted for and convicted of possession of a firearm by a convicted felon under both Alabama and United States law. His challenge to the “separate sovereigns” exception is unsurprising given that Justice Thomas joined Justice Ginsburg’s concurring opinion in Puerto Rico v. Sanchez-Valle (2016), which suggested the Court do a “fresh examination” of the “separate sovereigns” exception. These Justices are on opposite ends of the ideological spectrum and typically don’t vote together in close cases. 

In Knick v. Township of Scott the Supreme Court will decide whether to overturn Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985). In that case the Court held that before a takings claim may be brought in federal court, landowners must comply with state law procedures and remedies enacted to provide just compensation. The State and Local Legal Center (SLLC) amicus brief urges the Court to keep Williamson County.

The Township of Scott adopted an ordinance requiring cemeteries, whether public or private, to be free and open and accessible to the public during the day. Code enforcement could enter any property to determine the “existence and location” of a cemetery.

Knick v. Township of Scott involves a common theme before the Supreme Court. One party is asking it to overturn long-standing Supreme Court precedent. Unfortunately for states and local governments the precedent on the chopping block arises in the property rights context (where the more conservative Supreme Court tends to favor property owners) and is generally considered favorable to states and local governments.  

The Township of Scott adopted an ordinance requiring cemeteries, whether public or private, to be free and open and accessible to the public during the day. Code enforcement could enter any property to determine the “existence and location” of a cemetery.

The Constitution’s Takings Clause states that “private property [shall not] be taken for public use, without just compensation.” Rose Mary Knick sued the county in federal (rather than state) court claiming the ordinance was invalid per the Takings Clause after code enforcement went onto her property without a warrant looking for a cemetery.

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